In the ongoing civil trial, in which journalist E. Jean Carroll accuses former president Donald Trump of raping and defaming her, the plaintiff’s case is expected to wrap up today. With Trump’s attorneys having announced that they will not present any defense case, I expect that the trial will be in recess tomorrow and resume on Monday with summations, followed by the court’s legal instructions and deliberations.
As we’ve previously noted, pursuant to Judge Lewis Kaplan’s pretrial ruling, Carroll was permitted to play the infamous Access Hollywood tape the jury. From the time it was leaked in 2016 and nearly derailed his presidential bid, Trump has always dismissed his vile recorded remarks as “locker room talk.” That worked — perhaps surprisingly — in a political campaign. It is probably not going to work in a trial, particularly when the jury notices that he did not show up in court – and when, because it’s a civil rather than a criminal case, the jurors will be instructed that they may infer from Trump’s failure to testify that he does not have an innocent explanation for the evidence presented against him (or, at least, did not want to submit to cross-examination on whatever explanation he may have).
One of the reasons the “locker room talk” gambit is apt to fail is that Carroll’s lawyers had a clever plan for presenting the Access Hollywood tape. Rather than play it for the jury in isolation, they wove the tape into the testimony of Natasha Stoynoff.
She was the second witness to present what I’ve described as propensity evidence — claiming to be a victim of sexual assault by Trump, testimony offered to shore up the main claim in the case that Trump sexually assaulted Carroll. The first such witness, whose testimony we’ve previously discussed, was Jessica Leeds, who alleged that Trump suddenly and without invitation groped her breasts and ran his hand up her skirt on an airplane.
Stoynoff is a former People magazine reporter who told the jury that, while she was at Mar-a-Lago in 2005 to do a profile on Trump and Melania, Trump (out of his wife’s presence), steered her into a vacant room, shut the door behind them, pushed her against a wall and started kissing her. Stoynoff said Trump pulled back when a butler suddenly entered the room to say Melania was ready to proceed with the next part of the interview. In her testimony, she wept as she recounted the incident and Trump’s telling her, “You know we are going to have an affair.”
Stoynoff told the jury she came forward after the publication of the Access Hollywood tape, partially out of disgust, partially out of relief that she was not the only woman this sort of thing had happened to. This gave Carroll’s lawyers the opening to play the Access Hollywood recording for the jury during Stoynoff’s testimony — so they could hear it with Stoynoff’s flesh-and-blood account fresh in their minds, and the earlier testimony of Leeds and Carroll still ringing in their ears. In the portion of the recording the jurors were permitted to hear, Trump stated:
I better use some Tic Tacs just in case I start kissing her. You know, I’m automatically attracted to beautiful — I just start kissing them. It’s like a magnet. Just kiss. I don’t even wait. And when you’re a star they let you do it. You can do anything. . . . Grab them by the p****. You can do anything.
The combination of Stoynoff’s testimony and the recording seems to have been powerful. Trump’s lawyer, Joe Tacopina, asked her only one trifling question on cross-examination — whether she was in any litigation against Trump. She is not. The point, apparently, was to suggest, gingerly, that she didn’t go to the police and she didn’t sue, so she must be making the whole thing up . . . but how that helps the defense in a case where E. Jean Carroll has sued Trump is beyond me.
Still, under the circumstances, Tacopina seems to have read the room. He decided that a combative cross-examination of a witness who was sympathetic, upset, and without any obvious reason to lie under oath would not have been in Trump’s interest. If Trump is found liable, the jury will decide what damages should be awarded.
I believe this completed Carroll’s proof on the rape claim. Thursday’s presentation of evidence should relate to the defamation claim. It should also be brief. Basically, the plaintiff just needs to establish the things Trump said about Carroll and her allegations in social media posts last year. Whether those are deemed defamatory hinges on the jury’s assessment of the already-presented sexual-assault evidence. As we’ve previously explained (here and here), the defamation claim based on statements Trump made while president are still being challenged on legal grounds and are not in this trial.